THATIPARTHI KRISHNA REDDI Vs. AMBARKHANA JAYARAMA RAO

JUDGEMENT

(1.) The only point that arises for consideration in the appeal is whether the learned Judge in the Court below was right in dismissing the execution petition E.P. No. 7 of 1939 as barred by limitation. The suit was on a mortgage in which the preliminary decree was passed on 11th December, 1928. There was an appeal preferred to this Court from that decree in A.S. No. 212 of 1929, but the appeal was dismissed and the decree of the Court below was confirmed on 11 November, 1932. In the meanwhile, a final decree had been passed on 19 August, 1932, by the lower Court. Even before that date, however, the original plaintiff Venkatasubba Reddi died and in his place his sons were brought on the record as legal representatives. His sons were four in number of whom the elder two were majors and the younger two were minors and the decree was in favour of all of them, the minors being represented by the eldest son as next friend. The first execution petition was filed on 12 August, 1935, but it was returned for remedying some defects which were never properly remedied and was therefore rejected. It is not suggested that this order is capable of saying limitation. The decree-holders, the sons of Venkatasubba Reddi, then filed the present execution petition, E.P. No. 7 of 1939 on 20 November, 1938. The petition having been filed more than three years after the date of the judgment of the High Court on 11 November, 1932, is prima facie barred by limitation. The contention of the decree-holders in the Court below was that execution of the decree was not barred, inasmuch as two of the decree-holders were minors and their next friend was not competent to give a discharge within the meaning of Section 7 of the! Indian Limitation Act. This contention was not upheld and the Subordinate Judge accordingly dismissed the execution petition. The decree-holders have therefore preferred this appeal.

(2.) The learned Judge has not in his judgment considered the bearing of Order 32, rule 6 of the Civil P. C. on the point of limitation raised before him nor does it appear that his attention was called to the decided cases which have interpreted this rule. In Lakshmanan Chetti V/s. Subbiah Chetti a Division Bench of this Court (Coutts-Trotter, C.J. and Ramesam, J.) had occasion to consider the effect of Order 32, rule 6 in the light of the decision of the Privy Council in Ganesh Rao V/s. Tuljaram Rao (1913) 25 M.L.J. 150 : L.R. 40 I.A. 132 : I.L.R. 36 Mad. 295 (P.C.). There a Hindu father and his three minor sons represented by him as the next friend, had obtained a joint decree on 16 October, 1913. The father having died two months after the decree, his eldest son applied for the execution of the decree by a petition filed on 3 December, 1917, which was within three years of his majority, but more than three years after the date of the decree. If the father was in a position to give a legal and valid discharge of the decree without leave of the Court obtained under Order 32, rule 6, the decree would have been barred by limitation. The Court was therefore called upon to consider the effect of Section 7 of the Indian Limitation Act in relation to decrees obtained on behalf of minors and falling under the purview of Order 32, rule 6. The Court decided that the father though the natural guardian, was not competent to give a discharge in respect of the decree as it had been obtained by him on behalf of his sons and as their next friend or guardian. In coming to this conclusion the learned Judges merely applied the rule of law laid down by the Privy Council in the case of Ganesh Rao V/s. Tuljaram Rao (1913) 25 M.L.J. 150 : L.R. 40 I.A. 132 : I.L.R. 36 Mad. 295 (P.C.). Though the father might be the natural guardian, his power to act on behalf of minors represented by himself in a suit, was held to be controlled by the provisions of law contained in Order 32, rule 6, as he cannot do any act in his capacity as father or managing member, which he was debarred from doing as next friend or guardian without leave of the Court. It is conceded by Mr. Suryanarayana who appears for the respondents that this decision is directly against him and if right the appellants were entitled to succeed. But he contends that it has been overruled, in. effect though not expressly, by the Full Bench decision of this Court in Venkatakrishnayya V/s. China Kanakayya . The Pull Bench was not called upon to deal with the principle underlying Order 32, rule 6 at all. What happened in the case then before the Court was this. A decree had been obtained in favour of two minors represented by their mother and that decree was subsequently transferred to a third party by the mother acting as the guardian of the property of the minors. The question was Whether the transfer was valid and the transferee was entitled to be brought upon the record in the place of the decree-holders and be allowed to execute the decree. The Full Bench held he was. The judgment of the Court proceeded upon a construction of Order 32, rule 7 relating to the power of the next friend or a guardian to enter into an agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. The learned Chief Justice pointed out that the transfer of a decree by a mother of the minors was something entirely outside the suit and her powers as natural guardian were accordingly not in any way limited by the rule. But that is not the position here. The question is whether the next friend has the right to give a discharge with respect to the decree itself with reference to the parties to the suit. In Ramalingam Chetti V/s. Radhakrishna Chetti (1935) 70 M.L.J. 700, which is also relied upon for the respondents, the facts were totally different. The question was whether the father or manager in a joint Hindu family is entitled to receive the amount of a decree and to give a discharge so as to bind a minor member of the family who is a party to the suit without obtaining the leave of the Court where such father or managing member was not the next friend. The position would of course be different if the question had been whether the guardian himself could give a discharge even though he possessed the additional capacity of the father or manager of the family. We are of opinion that this case is governed by Lakshmanan Chetty V/s. Subbiah Chetty , which has not been in our opinion shaken in any way by the Full Bench decision in Venkatakrishnayya V/s. China Kanakayya .

(3.) That being so, the appeal must be allowed and the case sent back. The Subordinate Judge will restore the execution petition and proceed to dispose of it according to law. The appellants are entitled to the costs of this appeal.